LNN v The State of Western Australia
[2021] WASCA 39
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LNN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 39
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 1 DECEMBER 2020
DATE OF FINAL
SUBMISSIONS : 19 JANUARY 2021
DELIVERED : 8 MARCH 2021
FILE NO/S: CACR 115 of 2019
BETWEEN: LNN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S: CACR 36 of 2020
BETWEEN: LNN
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STONE DCJ
File Number : IND XX of 2018
Catchwords:
Criminal law - Appeal against conviction - Child sexual offences - Sexual penetration of a child under the age of 13 years - Indecent dealing with a child under the age of 13 years - Whether trial judge misdirected the jury as to the use it could make of recent complaint evidence - Whether verdicts of guilty on some counts on the indictment are inconsistent with verdicts of not guilty on other counts - Whether guilty verdicts are unreasonable and not supported by the evidence - Whether the trial judge's direction as to the permissible and impermissible use of evidence of uncharged acts gave rise to a miscarriage of justice
Legislation:
Criminal Code (WA), s 320
Evidence Act 1906 (WA), s 31A
Result:
Appeal allowed
New trial ordered
Category: A
Representation:
CACR 115 of 2019
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Lewis Blyth & Hooper |
| Respondent | : | Director of Public Prosecutions (WA) |
CACR 36 of 2020
Counsel:
| Appellant | : | C M Townsend |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Lewis Blyth & Hooper |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bailey v The State of Western Australia [2018] WASCA 169
Banks v The State of Western Australia [2018] WASCA 130
Dann v The State of Western Australia [2021] WASCA 15
DPJB v The State of Western Australia [2010] WASCA 12
Duniam v The Queen [1997] TASSC 107
GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037
Hill v The State of Western Australia [2019] WASCA 209
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
HTD v The State of Western Australia [No 2] [2019] WASCA 39
Johnson v The Queen [2018] HCA 48; (2018) 92 ALJR 1018
KND v The State of Western Australia [2017] WASCA 36
LNV v The State of Western Australia [2019] WASCA 180
MEN v The State of Western Australia [2020] WASCA 118
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
MNA v The State of Western Australia [2020] WASCA 84
NDY v The State of Western Australia [2020] WASCA 172
Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
Pfennig v The Queen (1995) 182 CLR 461
PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489
R v Bauer [2018] HCA 40; (2018) 266 CLR 56
R v Dolan (1992) 58 SASR 501
R v J (1994) 75 A Crim R 522
R v J (No 2) [1998] 3 VR 602
R v KET [1998] VSCA 73
R v Kirkman (1987) 44 SASR 591
R v LR [2005] QCA 368; [2006] 1 Qd R 435
Roach v The Queen [2011] HCA 2; (2011) 242 CLR 610
Strickland v The Queen [2000] WASCA 68
Contents
Summary
Prosecution case at trial
Defence case at trial
Prosecution evidence at trial
Evidence of T
CWI on 11 May 2017
CWI on 15 May 2017
Pre-recorded evidence on 29 October 2018
Evidence of H
CWI on 28 September 2018
Pre-recorded evidence on 30 October 2018
Evidence of Ms MacDonald
Evidence of Dr Doube
Evidence of C
Evidence of Detective Sergeant Calzada
EROI on 11 May 2017
EROI on 15 May 2017
Defence evidence at trial
Conviction appeal ground 1: Directions about Ms MacDonald's evidence
Discussions about recent complaint evidence
References to Ms MacDonald's evidence in closing submissions
Trial judge's direction
Appellant's submissions
Disposition
Conviction appeal ground 2: inconsistent verdicts
General principles
Appellant's submissions
Respondent's submissions
Disposition
Conviction appeal ground 3: unreasonable verdicts
General principles
Viewing the CWIs and pre-recorded evidence
Appellant's submissions
Respondent's submissions
Disposition
Rejection of appellant's denials
Counts 2 and 3: offending against T
Counts 5 and 6: offending against H
Application to amend grounds
Conviction appeal ground 4: Directions about evidence of uncharged acts
Discussions about evidence of uncharged acts
Trial judge's direction
The decision in Hill
Appellant's submissions
Respondent's submissions
Disposition
Uses of evidence of uncharged acts and directions about such evidence
Parties' positions as to permissible use of evidence of uncharged acts
Prospect that the jury might adopt propensity reasoning
Appeal against sentence
Extension of time
Orders
CACR 36 of 2020 (appeal against conviction):
CACR 115 of 2019 (appeal against sentence)
JUDGMENT OF THE COURT:
Summary
The appellant was tried on an indictment alleging that he committed six sexual offences against two complainants, T and H, who were both under the age of 13 years. T was born in January 2010 and H was born in April 2011. The offences were allegedly committed on the same unknown day between 1 January 2015 and 12 May 2017. On 1 April 2019, the appellant was convicted of four counts and acquitted of two counts. On 28 May 2019, he was sentenced to a total effective sentence of 8 years' imprisonment with eligibility for parole.
The particular offences with which the appellant was charged, and the outcomes of those charges, are indicated in the following table:
Count
Charged offence
(Criminal Code section)
Verdict
Sentence of imprisonment
Cumulative/ concurrent
1
Sexually penetrated T by penetrating her vagina with his penis (s 320(2))
Not Guilty
-
-
2
Sexually penetrated T by penetrating her mouth with his penis (s 320(2))
Guilty
4 years 6 months
Head sentence
3
Indecently dealt with T by masturbating in her presence (s 320(4))
Guilty
2 years 6 months
Concurrent
4
Indecently dealt with H by rubbing his penis against her genitals (s 320(4))
Not Guilty
-
-
5
Indecently dealt with H by rubbing his penis against her genitals (s 320(4))
Guilty
3 years 6 months
Cumulative
6
Encouraged H to engage in sexual behaviour by encouraging her to engage in fellatio (s 320(3))
Guilty
3 years
Concurrent
Total Effective Sentence
8 years
The sentence was backdated to 1 April 2019 to take account of time spent in custody on remand.
The appellant now appeals against his convictions and sentences.
The appeal against conviction is on four grounds:
(1)The trial judge misdirected the jury as to the use it could make of the evidence of a prosecution witness, Ms MacDonald.
(2)The guilty verdicts on counts 2, 3, 5 and 6 are inconsistent with the not guilty verdicts on counts 1 and 4.
(3)The guilty verdicts on counts 2, 3, 5 and 6 are unreasonable and not supported by the evidence.
(4)The trial judge erred when directing the jury as to the use it could make of the evidence of uncharged acts.
The appeal against sentence is on the sole ground that the total effective sentence of 8 years' imprisonment infringes the first limb of the totality principle.
The appellant requires an extension of time in each appeal. The applications for an extension of time, and the applications for leave to appeal on the above grounds other than ground 4 of the conviction appeal, have been referred to the hearing of the appeal. Leave to appeal has been granted on ground 4 of the conviction appeal.
For the following reasons, while grounds 1 - 3 of the conviction appeal are not established, ground 4 is established. In relation to ground 4, both complainants gave evidence of uncharged acts of sexual offending by the appellant against them. The permissible use of that evidence was never clearly articulated for the jury at trial. However, on appeal it is common ground between the appellant and the State that the evidence was not admitted or available for use as propensity evidence, either under s 31A of the Evidence Act 1906 (WA) or the common law. Given the way in which the State's case was put to the jury and the trial judge's direction, there was a real and not remote possibility that the jury would adopt propensity reasoning in relation to that evidence. In these circumstances, a miscarriage of justice arises from the absence of a clear direction by the trial judge that propensity reasoning was an impermissible use of the evidence.
We would therefore allow the appeal against conviction and order a new trial. The appeal against sentence should be dismissed on the basis that it has been rendered redundant by the success of the appeal against conviction.
Prosecution case at trial
The prosecution case at trial was that the charged offences all occurred at the same house occupied by a woman, P, with whom the appellant was having a relationship. At the same time the appellant was having a relationship with another woman, C, who was the complainants' biological mother. The appellant was left alone with the complainants in P's house when T was aged between 4 and 6 years and H was aged between 3 and 6 years.[1]
[1] Trial ts 123 - 124.
The prosecution case was that, in P's bedroom, the appellant put his penis in T's vagina (count 1) and put his penis in her mouth (count 2). In the lounge room of the house, he pulled out his penis and was shaking it (count 3).[2]
[2] Trial ts 124 - 126.
The appellant also pulled his pants down and began rubbing his penis against H's genitals in P's bedroom (count 4) and in the lounge room (count 5). Also in the lounge room, the appellant encouraged H to suck his penis (count 6).[3]
[3] Trial ts 126 - 128.
In the course of opening, the prosecutor anticipated Ms MacDonald, a librarian at T's school, giving evidence to the following effect. On 11 May 2017, T asked Ms MacDonald if she knew the appellant. T told Ms MacDonald that the appellant 'does yukky things to me' in P's bedroom. The prosecutor also anticipated that C, the complainants' mother, would give evidence that, in late 2015 or early 2016, T said to her that the appellant 'put his willie in my mouth'. The prosecutor explained that this recent complaint evidence did not go to the truth of what was said, but went to the credibility of T's account.[4]
[4] Trial ts 128 - 129.
Defence case at trial
The opening by the appellant's trial counsel did not advance a positive defence to the charge. Her opening emphasised the onus and burden of proof and the need to carefully scrutinise the complainants' evidence. Her opening also cautioned against the jury reasoning that certain unsavoury lifestyle choices the appellant had made meant that he was likely to have committed the offences.[5]
[5] Trial ts 131 - 134.
The appellant formally admitted the dates of birth of T and H, as well as the fact that, on 2 December 2015, four of his children were taken into the care of the State by the Department of Child Protection.[6]
[6] Trial ts 138, exhibit 1.
Prosecution evidence at trial
The following is a summary of the evidence the State adduced at trial.
Evidence of T
T participated in two child witness interviews (CWIs), on 11 and 15 May 2017. T was very hard to engage with in these interviews, which were conducted when T was aged about 7 years 4 months. The interviewer struggled to have T stay on topic, and she was often unable to do so. T's answers to the interviewer's questions were often non‑responsive, and T was very easily distracted and frequently asked for breaks. T was evidently very reluctant to talk about sexual conduct, and at one point expressed concern that she was going to get in trouble, would not see her mother again and would be put in 'kid gaol'.[7]
CWI on 11 May 2017
[7] CWI ts, 11/5/17 at p 19 - 20.
The substantive part of the interview on 11 May 2017 began with the interviewer asking T if she told 'someone about something that happened' when she was colouring a picture at school that day.[8] T responded, 'no'. T was then asked:[9]
QSo I heard when you were colouring in the picture you told someone about yucky things that happened to you in [P's] bedroom.
AYeah.
[8] CWI ts, 11/5/17 at p 8.
[9] CWI ts, 11/5/17 at p 8.
The interviewer then asked T to tell her 'all about the yucky things'. T responded that, when she was at P's house, the appellant 'did yucky stuff to me' and he 'did it to [H]' before he 'telled us that he's going to sleep'.[10]
[10] CWI ts, 11/5/17 at p 8 - 9.
The interviewer asked T to explain what the 'yucky stuff' the appellant did was. After initially saying, 'I don't know what he did', T responded that 'when he did it' H came into the room 'when the door was closed'. When asked again to explain the 'yucky stuff', T responded that she did not know what he did.[11] When the interviewer asked whether the appellant had 'done yucky stuff to you one time or more than one time', T said that it was one time. She said that 'he did it to [H]' and that 'he was doing this with her - his hand, and he did want her to suck on it'.[12]
[11] CWI ts, 11/5/17 at p 9 - 10.
[12] CWI ts, 11/5/17 at p 10 - 11.
Later, when asked to tell the interviewer 'more about the yucky stuff that [the appellant] did to you', T responded that he 'did it last Monday'.[13] There were then a series of rather confusing answers which suggested that the appellant had recently (at the time of the interview) asked T and H to suck on his 'private parts' at about the time of a family fight.[14]
[13] CWI ts, 11/5/17 at p 14.
[14] CWI ts, 11/5/17 at p 14 - 26.
After a break, the interviewer asked T what the appellant did to H. T said, 'nothing', and then 'I saw her crying because [the appellant] was doing this'.[15] The interviewer said that T had said that the appellant was telling T and H to suck on his private parts, and asked T what was another name for 'private parts'. T responded that 'he means his willy'.[16]
[15] CWI ts, 11/5/17 at p 29.
[16] CWI ts, 11/5/17 at p 30.
The following exchange between the interviewer and T took place, which the prosecutor identified as the conduct the subject of count 1 (sexual penetration of T's vagina with the appellant's penis):[17]
[17] CWI ts, 11/5/17 at p 30 - 31, identified in the prosecutor's opening at trial ts 124 - 125. Some incorrect references to questions and answers have been corrected in the quotation of the above transcript.
Q. [T], what did he do with his willy?
A. He said, '[T], come suck on my willy.'
Q. Mm hm. Then what did he do?
A. Then he put - he said - in [P's] room we both took our clothes off.
Q. Mm hm.
A. We took our - he took his pants off, jocks, T-shirt. I did the same. Then he's put his willy in my rudie and it was hurting it.
Q. Mm hm. Then what happened?
A. I don't know. He did it when I was six. Six.
Q. And you said it was hurting.
A. Yeah.
Q. Tell me about that.
A. Because I - I had a rash on it.
(emphasis added)
T said that she showed the rash on her 'rudie' to her mum and said that it hurt. Her mum said 'You got to wipe yourself properly'.[18] The interview continued:[19]
A. But in - when he was - keep putting he - his - his doodle - willy in my rudie, um, he - he - [H] said, 'Put your - mum's back,' so we quickly put our clothes on.
Q. And what was [H] doing when he put his willy in your rudie?
A. He were - she was trying to get in.
Q. Trying to get in?
A. Yeah.
Q. What do you mean, she was trying to get in?
A. When the doors closed.
[18] CWI ts, 11/5/17 at p 33.
[19] CWI ts, 11/5/17 at p 33.
Later in the interview, the interviewer asked T whether she had another name for 'rudie'. The transcript does not indicate a responsive answer. When T was asked what a 'rudie' was used for, she answered, 'To get wee pissed - coming up'.[20]
[20] CWI ts, 11/5/17 at p 39.
The interviewer asked T whether she had told her mum what had happened with the appellant when she told her mum about the rash. There was no audible answer. When asked who the first person she told was, T said that she told her mum that 'daddy put his willy in my rudie'.[21]
CWI on 15 May 2017
[21] CWI ts, 11/5/17 at p 40 - 41.
The interview on 15 May 2017 began with the interviewer seeking further details of the more recent incident when the appellant told T and H to suck his private parts. The interviewer then asked T to tell her about the very first time the appellant had said 'suck my private parts'.[22] In the response which the prosecutor relied on to prove count 3 (indecently dealt with T by masturbating in her presence),[23] T said that, after P and her mum had left the house:[24]
[22] CWI ts, 15/5/17 at p 4 - 10.
[23] Trial ts 126.
[24] CWI ts, 15/5/17 at p 10 - 11.
A. He pulled it out.
Q. Mm hm.
A. Then he started to shake it.
Q. Mm hm.
A. Am I nearly done?
Q. He started to shake it?
A. Yeah. Am I nearly finished talking?
Q. We just have to keep talking. So you said he started to shake it. Then what happened?
A. Um, he said to [H] to come shake it.
Q. Mm hm. Mm hm.
A. Then I - she was too scared.
T indicated that H ran away. When asked what he used to shake 'it', T said that he used his hand. When asked what the appellant did with his hand, T responded that he 'shaked it a lot of time', and then he fell asleep.[25]
[25] CWI ts, 15/5/17 at p 11 - 12.
Later in the interview, the following exchange occurred which the prosecutor indicated was relied on to prove count 2 (sexually penetrated T by penetrating her mouth with his penis):[26]
[26] CWI ts, 15/5/17 at p 13 - 14, identified in the prosecutor's opening at trial ts 125 - 126.
Q.So last week you told me that [the appellant] says, 'Keep sucking it.' Tell me about a time where [the appellant] said, 'Keep sucking it.'
A. Um - um, well, last time when I was sucking it I felt his wee - piss coming out.
Q. Mm hm. So tell me everything that happened the last time you were sucking it and you felt his piss come out.
A. In my mouth.
Q. Mm hm. So what happened just before you were sucking it?
A. Um - um, in [P's] room.
Q. Mm hm.
A. Am I going to go after this one?
Q. [T], what you've got to say today is really important, okay? So it's important that we finish our talking. So you said last time when you were sucking it - what did [the appellant] do just before you were sucking it?
A. Um, told me, 'That's enough.'
When asked what she meant by 'it', T eventually indicated that she meant his 'willy'. When asked what the appellant did with his willy before it was in her mouth, T said that 'he pulled it out'. She said that the 'piss' came out of 'that little hole'. When asked what happened next, T said that the appellant went home.[27]
[27] CWI ts, 15/5/17 at p 14 - 16.
T indicated that the conduct relied on by the prosecutor to prove count 3 happened when she was six,[28] and the conduct relied on by the prosecutor to prove count 2 happened when she was five.[29] There was no one else there when the conduct relied on by the prosecutor to prove count 2 happened.[30] The first person she told about that conduct was her mum. T told her mum that 'Dad put his willy in my mouth'. T indicated that her mother did not say anything.[31]
Pre-recorded evidence on 29 October 2018
[28] CWI ts, 15/5/17 at p 19.
[29] CWI ts, 15/5/17 at p 21.
[30] CWI ts, 15/5/17 at p 21.
[31] CWI ts, 15/5/17 at p 22.
T's evidence was pre-recorded on 29 October 2018, when she was 8 years 10 months old.
The examination-in-chief principally comprised the adoption of T's CWIs and the tender of photographs of P's house. T was asked what another word for 'rudie' was and at first said she didn't know.[32] When T was later asked again, she said 'vagina'.[33]
[32] Trial ts 39.
[33] Trial ts 47.
In cross-examination, T explained that she would catch a train to the appellant's and P's house with her mother, C, and four siblings.[34] T's answers indicated that she could not say how long before the CWIs the events happened.[35]
[34] Trial ts 49 - 50.
[35] Trial ts 52.
T indicated that the things she described in the CWIs happened on two different days[36] and were about a week apart. However, when asked whether the timing was 'a clear memory or are you just trying to be helpful or are you not sure', T responded 'I'm not sure'.[37]
[36] Trial ts 52 - 53.
[37] Trial ts 59.
On the first day, T went to the appellant's and P's house with her mother and siblings after lunch. The appellant, P and their 6 children were present at the house. Four of the appellant's and P's children left the house to go 'to DCP' (two older teenage boys remaining). T could not remember anyone else leaving the house apart from when C and P went to get dinner.[38]
[38] Trial ts 53 - 57.
T indicated that she did not remember what the appellant did to her on the first visit. She eventually said 'I think he did yucky stuff to me' but indicated that she could not be more clear than that.[39]
[39] Trial ts 57 - 58.
On the second visit, T went with her mother and her siblings to the appellant's and P's house. The appellant, P and their two older teenage children were there.[40] No-one went out shopping that day.[41] T said she could not remember what the appellant did to her on this day.[42]
[40] Trial ts 60.
[41] Trial ts 61 - 62.
[42] Trial ts 62.
T denied lying to police about the appellant doing 'yucky things' to her, and denied being told by her mother to make things up about the appellant.[43]
Evidence of H
[43] Trial ts 68 - 70.
H participated in a CWI on 28 September 2018, when she was 7 years 5 months old. She was also somewhat difficult to engage with and quite easily distracted, although the interview was not as difficult as the interview with T had been. H gave pre-recorded evidence about a month later, on 30 October 2018.
CWI on 28 September 2018
After the introductory parts of the CWI, H said that the appellant 'did something disgusting'. When asked what, H at first said 'I forgot'.[44]
[44] CWI ts, 28/9/18 at p 4.
H then described an incident in the lounge room of the appellant's house, when she was sitting on a couch watching TV with the appellant and T. The appellant pulled his pants off and 'was putting his privates on [T's]' as T stood on a mat in the lounge. Although she could not name the 'privates', H said that boys had privates like the appellant's and girls had privates like T's, which were used for going to the toilet. H said that T was saying, 'no'. The appellant called H over to him, but she did not go. Nothing else happened this time.[45]
[45] CWI ts, 28/9/18 at p 5 - 10.
H described a similar incident which occurred in the appellant's bedroom on a different day. H was in the bedroom with T and the appellant. The appellant pulled his pants down and put them on the bed, and told T to take her pants and underpants off, which she did, placing them on the bed. The appellant put his 'private' or 'willy' on T's 'private'. It was not moving at the time. The appellant and T pulled their pants on when they heard C and their younger sister arrive home from shopping.[46] H said that this happened 'a long time ago' when she thought she was six.[47]
[46] CWI ts, 28/9/18 at p 10 - 17, 19 - 20.
[47] CWI ts, 28/9/18 at p 18.
H said that, at the time of the incident referred to in the previous paragraph, the appellant did the same thing to her too, putting his 'willy' on her 'private'. After H went to the toilet, she was standing up and the appellant was sitting on the bed holding his willy. He touched H's 'back and front' and her 'middle bit'.[48] The prosecutor indicated that this was the evidence relied on to prove count 4 (indecently dealt with H by rubbing his penis against her genitals).[49]
[48] CWI ts, 28/9/18 at p 21 - 26.
[49] Trial ts 126 - 127.
H said that the appellant had touched her 'private' on the same day in the lounge of his house. Immediately after the incident summarised at [41] above, the appellant told H to come over and she walked to him. He was sitting on the couch with his pants still down. The appellant pulled H's pants down and 'then he did the disgusting thing'. The following exchange then occurred:[50]
[50] CWI ts, 28/9/18 at p 29.
Q. Mm? What was the disgusting thing?
A. I don't remember. He put his willy on mine and his private.
Q. Willy on yours, and what was he doing with his willy on your private?
A. He was putting it on mine.
Q. Mm hm. What was his willy doing on yours?
A. I don't think that I remember - I don't remember.
Q. Okay. And what's the very next thing that happened?
A. I forgot.
The prosecutor indicated that this was the evidence relied on to prove count 5 (indecently dealt with H by rubbing his penis against her genitals).[51]
[51] Trial ts 127.
H initially answered 'no' when asked if anything else happened in the lounge room that day.[52] When the interviewer said that she had heard that the appellant told H to suck something, H responded 'his willy'. She said that this was on the same day in the lounge room, before he touched H's and T's 'privates'. H said that she could see the appellant's 'willy' and that he was holding it as he said this. H said that neither she nor T sucked the appellant's 'willy'. H said that the appellant asked H to 'suck it' when he was putting his 'private' on H's 'private' in the lounge room.[53] The prosecutor indicated that this evidence was relied on to prove count 6 (encouraging H to engage in fellatio).[54]
[52] CWI ts, 28/9/18 at p 29.
[53] CWI ts, 28/9/18 at p 30 - 31.
[54] Trial ts 127 - 128.
Although H said that T did not suck the appellant's 'willy',[55] when the interviewer said that she had heard that the appellant told T to 'keep sucking it', H agreed that he had. When asked what happened when the appellant told T to 'keep sucking it', H responded, 'I don't know'.[56] The prosecutor indicated that he relied on this evidence to support T's account of count 2.[57]
Pre-recorded evidence on 30 October 2018
[55] CWI ts, 28/9/18 at p 30.
[56] CWI ts, 28/9/18 at p 32.
[57] Trial ts 126.
In her pre-recorded evidence, H indicated that the answers she gave in the CWI video were true.[58]
[58] Trial ts 82.
In cross-examination, H said that she did not recall being asked lots of questions on two different visits to a policewoman and not giving any answers to the questions.[59]
[59] Trial ts 83.
H said that the appellant did something to her on two different visits.[60]
[60] Trial ts 84.
On the first visit, she walked to the appellant's house with her mother and siblings after lunch. The appellant, P and some of their children were there, although she could not remember which. They all sat in the lounge room with the television.[61] At first, H said that no one left the house during the visit,[62] but she later said everyone but herself, T and the appellant went to the shops.[63] H said that the appellant 'put his private on mine'.[64]
[61] Trial ts 85 - 88.
[62] Trial ts 87.
[63] Trial ts 87 - 88.
[64] Trial ts 88.
H said that she had never told anyone other than the interviewing officer about the things the appellant had done to her, although she accepted that people had asked her about those things before. She had never told her mother. H did not know why she ended up making the video (referring to the recording of the CWI).[65]
[65] Trial ts 90.
When asked if she had told her carer, H said that she had.[66] This answer was not anticipated, and the carer concerned was H's support person in the video room. After a substitute was arranged, H was again asked if she had told anybody about the things the appellant had done to her. H answered 'no', and said she did not know why she went to make the video.[67]
[66] Trial ts 90.
[67] Trial ts 94 - 95.
When further cross-examined about the first incident, H said that it occurred in the lounge room when T was there. H said she was wearing all of her clothes. In response to a question about whether the appellant was wearing all his clothes, H first responded 'yes' and then said 'don't remember'. She said that nothing else happened on the first visit.[68]
[68] Trial ts 96.
In the following exchange, H said that the appellant did not do anything to her on the second visit:[69]
All right. And on this visit just tell me what you remember happening? What did - did [the appellant] do anything to you?---No.
Nothing at all on this visit, no. So apart from what you just told me that happened on the first visit, did [the appellant] ever do anything else to you?---No.
Are you sure about that?---Yes.
[69] Trial ts 97.
In re-examination, H said that she did not know why she didn't say anything to anyone about what the appellant did.[70] She could not remember where she walked from to get to the appellant's house on the first visit. She did not know where the bottom half of her clothes and the appellant's clothes were when he put his 'willy' on her 'privates'.[71]
Evidence of Ms MacDonald
[70] Trial ts 97.
[71] Trial ts 98.
Ms MacDonald worked as a library officer at T's school. On Thursday 11 May 2017, T was colouring a 'Frozen' book in the library at recess. Ms MacDonald gave evidence of the following conversation:[72]
T:Do you know [the appellant, identified as the father of one of T's sisters]?
Ms MacDonald: Yes.
T:He does yucky things to me in [P's] bedroom.
Ms MacDonald: You know your teacher is one of your safe people, and you can tell your teacher anything?
T's teacher was about three metres away from them at this time. T did not reply or say anything, and just kept colouring in. She took a black pencil and was squiggling over the trouser part of a male figure in the 'Frozen' book, and said:[73]
I have to colour in the private parts because they're yucky.
[72] Trial ts 159.
[73] Trial ts 160.
In cross-examination, Ms MacDonald agreed that earlier in the year the school had started teaching protective behaviours as part of the health curriculum. As part of that curriculum, teachers would read fiction books to students in class as a teaching aid. Ms MacDonald did not know the content of those books.[74]
Evidence of Dr Doube
[74] Trial ts 160 - 161.
Dr Patrick Doube, a senior paediatric registrar, gave evidence of examining T and H on 2 June 2017. T presented as generally fit and well, with diagnoses of epilepsy (not being treated as she had not had seizures for some time) and ADHD (being treated with Ritalin). An external examination of T's genitalia showed it to be normal and healthy with no signs of injury to the hymen. He stated it was widely acknowledged that in cases of confirmed child sex abuse the examination findings would be normal, with no signs of injury. He did not perform an external genital examination of H, who became distressed and did not want the examination to occur.[75]
Evidence of C
[75] Trial ts 169 - 177.
C gave evidence that she was 29 years old at the time of trial. She was T and H's mother, and their father was a man, G, with whom she did not have a relationship at the time of trial. C also had three children with the appellant, born in November 2013, December 2014 and July 2016.[76]
[76] Trial ts 178 - 179.
The appellant and P had six children together.[77] P's daughter (M) also stayed with P until 2015, and had two children, the second of which was born in 2015.[78]
[77] Trial ts 188 - 189.
[78] Trial ts 189 - 190.
C and the appellant began their relationship in about 2012. At that time the appellant left P and, with his two eldest sons with P, moved in with C. C, P and the appellant then agreed to commence a three-way relationship and the families all lived in P's house (four adults and nine children).[79]
[79] Trial ts 179 - 181, 188 - 193.
After a few months, the three-way relationship became too difficult, with a lot of fighting between C, P and the appellant, often occurring in front of the children. C was asked to leave P's house. She moved into a house in a Perth suburb for about 4 - 5 months, before moving to another Perth suburb for a period (variously described as about 6 - 7 months, a year and 1 - 1.5 years) before moving to a house in the same suburb as P's and the appellant's house for about 3 months until her children were taken into care in May 2017.[80]
[80] Trial ts 193 - 197.
C said that her relationship with the appellant ended in 2016, but was still on and off again after that date. She would still regularly take her children to see the appellant, and would often stay at P's house for a few days at a time. C's relationship with the appellant remained volatile, and there were a lot of fights.[81] From her house in the same suburb as P's and the appellant's house, C would walk to P's house, and took the train to take the children to and from school.[82]
[81] Trial ts 197 - 201.
[82] Trial ts 182.
C's evidence was that, when she visited P's house, C and P would 'go to the shop a fair bit', leaving the kids at home, often for about an hour or two.[83] There were times when T and H were left by themselves with the appellant when C and P went shopping. After the appellant's and P's younger children were taken into care the two eldest teenage boys would still be at the house but 'sometimes they'd jump the fence and run off'.[84]
[83] Trial ts 182 - 183.
[84] Trial ts 205 - 206.
C gave evidence that, when she was changing her second youngest child (who was just over a year old) at her home, T walked over to C and told her the appellant had 'stuck his willy in her mouth'. C did not say anything to T or prompt her before she said that. C did not say anything to T in response. C called P and understood that P then contacted the Department of Child Protection (DCP) who spoke to T at her school.[85] As C's second youngest child was born in December 2014, T's complaint must have been made either in late 2015 or early 2016.
[85] Trial ts 185, 202.
C accepted that, in the one to two weeks before T was interviewed by police in May 2017, there was a fight between the appellant and C. The fight occurred when C was trying to get some things back from P's house.[86]
Evidence of Detective Sergeant Calzada
[86] Trial ts 203 - 205.
Detective Sergeant Calzada gave evidence of arresting the appellant at his home on 11 and 15 May 2017, and conducting two recorded interviews (EROIs) with the appellant on those dates.
EROI on 11 May 2017
The appellant indicated that he was born in August 1976, was 40 years old and had left school after doing one month of year 8. He could not read or write properly. He was on antidepressants and Valium for anxiety.[87]
[87] EROI ts, 11/5/17 at p 2 - 4, 11.
In the interview, the appellant denied ever having sexually touched T, H or any of his children. He explained that he had been sexually abused by his stepfather as a child, and that he would never want to inflict that pain on anyone.[88] He described having sex with each of P and C about once every six months and his difficulty in obtaining an erection. He stated that P and C did not perform oral sex on him as he did not like it (as it brought back memories of the sexual abuse he experienced as a child).[89]
[88] EROI ts, 11/5/17 at p 7 - 8, 48.
[89] EROI ts, 11/5/17 at p 18 - 26.
The appellant explained that his four youngest children with P had been taken into State care about 17 months previously.[90]
[90] EROI ts, 11/5/17 at p 14 - 15, 26.
The appellant explained that C came over to P's house once or twice every couple of weeks and spent a couple of hours there with the kids.[91] While he admitted he may have been left alone with them for 5 ‑ 10 minutes at a time, the appellant denied ever being left alone in the house with T and H for hours.[92] He said there was a safety plan in place for his children with C which allowed him to spend as much time with the children as he wanted, but that his access was required to be supervised by an adult.[93] He denied ever having been in P's bedroom.[94]
EROI on 15 May 2017
[91] EROI ts, 11/5/17 at p 27.
[92] EROI ts, 11/5/17 at p 33 - 34, 37, 40, 41, 44, 46.
[93] EROI ts, 11/5/17 at p 39, 44 - 45.
[94] EROI ts, 11/5/17 at p 35.
In the second EROI on 15 May 2017, the appellant admitted he had lied to police in the first interview when he denied spending time unsupervised with the children, including T and H, at the house. He said that he told those lies because he was afraid of losing his remaining children and did not want them to go into protection if he was discovered spending unsupervised time with the children.[95]
[95] EROI ts, 15/5/17 at p 6 - 26, 50, 52, 60 - 61, 70.
In the course of the interview, the appellant said that he was taking Valium, antidepressants and had been using cannabis.[96] He accepted that there was an incident where police were called after he 'tried swallowing all [his] medication and [drank] a bottle of vodka' in a suicide attempt.[97] There were times the appellant could not remember what had happened the day before, and an occasion on which he was off his medications and 'skitzed out' when 'basically the demons come into my head'.[98] He did not accept that sexual offending could have happened and he could not remember it.[99]
[96] EROI ts, 15/5/17 at p 30.
[97] EROI ts, 15/5/17 at p 31.
[98] EROI ts, 15/5/17 at p 29 - 36.
[99] EROI ts, 15/5/17 at p 54.
The appellant maintained his denial of any sexual offending against T or H in this second interview.[100]
[100] EROI ts, 15/5/17 at p 40, 50, 52, 59 - 60, 63 - 64, 68, 69, 70.
Defence evidence at trial
The appellant did not give evidence at trial, but adduced evidence from M, his adult stepdaughter and P's daughter. M had lived with the appellant and P her whole life until she left their home just after the appellant's and P's children were taken into care in December 2015. C had stayed at the house with her children for a period. M could not recall a TV being in P's bedroom in the time she was there, and did not think one was in the room. She accepted that there were occasions when the appellant would be left to look after the children while the other adults were out.[101]
[101] Trial ts 254 - 259.
Conviction appeal ground 1: Directions about Ms MacDonald's evidence
Ground 1 contends that the trial judge erred when directing the jury as to the use it could make of Ms MacDonald's evidence. Ms MacDonald was a librarian at the school T was attending. She gave evidence that, on 11 May 2017, T said that the appellant did 'yucky things' to her in P's bedroom.
Discussions about recent complaint evidence
As noted at [12] above, in his opening address the prosecutor indicated that the evidence of both Ms MacDonald and C would be relied on as recent complaint evidence.
After Ms MacDonald had given evidence, and in the absence of the jury, the trial judge queried counsel as to whether her evidence could be classified as recent complaint evidence. The matter was not resolved at that time.[102]
[102] Trial ts 161 - 167.
After C had given her evidence, the trial judge again raised concerns about Ms MacDonald's evidence, which included concerns about the complaint made in late 2015 referred to in [65] above.[103] The prosecutor said:[104]
So I think in fairness what I'd seek to do is not rely on Ms MacDonald's as recent complaint and rely only on the evidence of [C] as being recent complaint, going to count 2 on the indictment.
[103] Trial ts 209 - 210.
[104] Trial ts 210.
The trial judge asked the prosecutor whether it was appropriate to direct the jury to disregard the entirety of Ms MacDonald's evidence. The prosecutor said that her evidence was relevant for two purposes. First, it explained how the matter came to be reported to authorities, and why the children were taken into care on 22 May 2017. Secondly, it showed that the children had been taught protective behaviours at the school in 2017.[105]
[105] Trial ts 210 - 211.
The appellant's trial counsel indicated she had no difficulty with the protective behaviour component of Ms MacDonald's evidence. When asked by the trial judge whether he should direct the jury to disregard the conversation between Ms MacDonald and T, trial counsel responded:[106]
Your Honour, I will have to take instructions before I finalise that decision. But that conversation was - we don't object to that conversation being led in evidence because of instructions in relation to the defence case. So can I just confirm the position … on that?
[106] Trial ts 211 - 212.
The trial judge responded:[107]
The difficulty I have with it is this. I fail to see how I can direct that is evidence of recent complaint. However, if the defence want hearsay evidence for forensic reasons left before a jury that's entirely a matter for the defence.
[107] Trial ts 212.
The appellant's trial counsel agreed that it was not appropriate for the jury to be directed that Ms MacDonald's evidence was recent complaint evidence. In effect, the trial judge noted that the interim position was that the evidence would be left to the jury as hearsay, but that this was subject to defence counsel not expressing a contrary view during the course of the trial.[108]
[108] Trial ts 212.
Later in the trial, defence counsel explained that she considered the evidence of what T told Ms MacDonald as being relevant to explain the following emphasised comments in T's CWI of 11 May 2017:[109]
[109] CWI ts, 11/5/17 at p 19 - 20.
Q. - - - we're just going to talk about the last time that he told you to suck - suck on his private parts. So tell me all about the last time.
A. Yeah, I said it at the library. Now I got to tell the police all about it.
Q. Mm hm.
A. And I hope I don't go to kid gaol.
Q. So, [T], you're not in any trouble. We're just here to talk about it.
A. No. No, the police will get me into trouble, then I won't see my mum ever again.
Q. Okay. That's not what's going to happen, okay?
A. But the police always get grown-ups, put them into grown-up gaol, and gets kids, put them kids into kid gaol.
Q. Okay. We'll talk about that a little bit more later, okay?
A. But I don't want to go to kid gaol.
Q. That's not going to happen, okay?
A. Yeah. Only if we're being very bad, and I been very bad at the library.
Q. Mm hm.
A. So I'll maybe go real - I'll maybe go to kid gaol. Only we go to kid gaol if we're being bad, and I did.
Q. So, [T], we're just talk - - -
A. But I'm going to go to kid gaol.
(emphasis added)
The appellant's trial counsel contended that Ms MacDonald's evidence was relevant for three reasons. First, it went to T's state of mind when she was interviewed. Secondly, it explained how T came to speak to the police. Thirdly, it explained the starting point of how the interview unfolded.[110] At the conclusion of counsel's submissions on the issue, the trial judge ruled:[111]
Well, I'll be directing … the jury that the relevance of the librarian's evidence is this, that it shows when [T's] complaint was acted upon so it gives us a point in time. What she said to the librarian is hearsay and could never prove the fact that [the appellant] put his penis in her mouth. That's all I'm going to say to the jury about that. You make of the rest of it what you will …
References to Ms MacDonald's evidence in closing submissions
[110] Trial ts 227 - 235.
[111] Trial ts 235.
In his closing address, the prosecutor indicated that the conversation between Ms MacDonald and T could be used to explain the sequence of events on 11 May 2017, including why T participated in a CWI, and why the appellant was interviewed by police.[112] The only evidence of recent complaint referred to by the prosecutor was the evidence of C, which was said to be relevant to T's credibility only in relation to count 2.[113]
[112] Closing ts 4.
[113] Closing ts 6 - 8.
In her closing address, the appellant's trial counsel referred the jury to the passage of T's CWI on 11 May 2017 quoted at [84] above. After referring to T's statement that she had been 'very bad at the library', counsel submitted to the jury:[114]
Another thing to think about. What is the real concern here? What is she worried about? That maybe she told a porky at the library? You might think that that might have been playing on her mind from that response.
And now she's got to tell police all about it, and continue this juggernaut. This is what the defence case is, that she's said one thing and she's had to continue it from there, and give more and more detail and talk about it more and more, again and again.
And again, it's not a criticism of anyone or the process or anything like that, because these things do have to be investigated. But you might get the impression that that is why the interview unfolds the way in which it does.
Trial judge's direction
[114] Closing ts 27.
The trial judge gave the jury the following directions in relation to the use it could make of Ms MacDonald's evidence:[115]
Now, you heard evidence that on 11 May 2017, [T] was in the library colouring in when she told the librarian, Ms MacDonald, something about [the appellant] which caused Ms MacDonald to make a report to [T's] teacher which then led to DCP and police involvement in this case.
What [T] said to Ms MacDonald is hearsay evidence and it does not prove as a matter of fact that [the appellant] did anything sexually inappropriate to [T]. Its only relevance, members of the jury, is to explain when and how this case was reported to DCP and then the police. (emphasis added)
We note that the judge anticipated giving this direction in a discussion with counsel in the absence of the jury, and both the prosecutor and the appellant's trial counsel indicated they had no difficulty with the direction.[116]
[115] Trial ts 364.
[116] Trial ts 303 - 304.
The trial judge then referred to C's evidence that T had said the appellant 'stuck his willy in my mouth' and the State's submissions about that evidence.[117] His Honour then gave an orthodox 'recent complaint' direction which he said applied only to count 2 if the jury found as a fact that T made the complaint to C in late 2015 or early 2016.[118] The trial judge directed that this evidence could be taken into account in considering T's credibility and the truthfulness of her evidence. It was relevant to know how T reacted relatively soon after the events to see whether she acted in a way that might be expected of a girl in her position relatively soon after the events she described.[119]
[117] Trial ts 364 - 365.
[118] Trial ts 365.
[119] Trial ts 365 - 366.
The trial judge then directed the jury:[120]
It follows that apart from telling her mother in late 2015, early 2016 if you find that to be the case about the incident the subject matter of count 2 [T] made no immediate complaint about what she alleged [the appellant] did to her to her mother, or the people to whom you might expect her to have complained in the circumstances.
Those other matters were not revealed by [T] until 2017.
[120] Trial ts 366.
After noting H's evidence to the effect that the first person she told was the specialist police officer at the interview on 28 September 2018, the trial judge gave a direction about the relevance of delay in making a complaint in sexual assault cases.[121]
[121] Trial ts 366 - 367.
In summarising the prosecutor's submissions about recent complaint evidence, the trial judge noted the following:[122]
He explained the nature of the household in which the children were living and as I say, he explained to you how at the end of the day the State arrived at the relevant timeframe in the context of what was said to [C] when she was changing [her second youngest child] and how you use that.
He used the expression recent complaint and I've explained to you and directed you in law how you are to use that evidence of complaint by [T] to her mother and [the prosecutor] accepted that the complaint evidence only relates to count 2 and it affects your assessment of [T's] credibility and I've explained to you again and directed you that it has a limited purpose only and it's in the context of consistency of conduct.
It can only affect her credit. It can never prove the fact in issue.
Appellant's submissions
[122] Trial ts 379 - 380.
On appeal, the appellant submits that the State never corrected its assertion, in opening, that it relied upon Ms MacDonald's evidence as recent complaint evidence. The appellant says that the trial judge did not correct that assertion. The appellant says that, whilst the judge referred to Ms MacDonald's evidence as 'hearsay evidence', no explanation was provided as to what use could be made of that evidence, if any.
The appellant also submits that the prosecutor failed to, or failed to adequately, explain what use the jury could make of Ms MacDonald's evidence, notwithstanding his comments in opening that he would. The appellant says that, in effect, the jury was left without direction, or adequate direction, as to the use they could make of Ms MacDonald's evidence. Without direction, the jury were likely to impermissibly use that evidence in assessing T's credibility. The appellant contends that, as a result, there was a risk the jury would use that evidence improperly, bolstering the evidence of T with respect to count 2.
Accordingly, the appellant submits that the trial judge erred in the manner by which he left the evidence of Ms MacDonald before the jury, and as a result a miscarriage of justice occurred.
Disposition
In our view, there is no merit in this ground. The trial judge's direction quoted at [88] above explained to the jury the only relevance of Ms MacDonald's evidence. The 'recent complaint' direction was expressed in terms which did not apply to Ms MacDonald's evidence. In particular, the 'recent complaint' direction related solely to C's evidence as to T's complaint and the direction applied only to count 2 and only if the jury found as a fact that T made the complaint to C in late 2015 or early 2016. Taken as a whole, and in light of counsel's closing submissions, the trial judge's direction made it clear that the only recent complaint evidence which could be used to support the State's case was that of the complaint made to C. The direction made it clear that Ms MacDonald's evidence could not be used as recent complaint evidence and that the only relevance of her evidence was to explain when and how the matter came to the attention of police. In that context there was no need for the trial judge to direct the jury that the State had disavowed the suggestion made by the prosecutor in opening as to the use of Ms MacDonald's evidence as recent complaint evidence.
It may also be noted that the appellant's competent trial counsel deliberately did not object to the admission of the evidence of what T told Ms MacDonald on 11 May 2017. She sought to obtain a forensic advantage from the admission of the evidence, to make the submissions to the jury set out at [87] above. That was a rational forensic decision. Trial counsel's submissions invited the jury to draw adverse conclusions about the honesty and reliability of T's evidence from the evidence as to what T told Ms MacDonald. A specific direction by the trial judge that the jury could not use the evidence to assess T's credibility would have cut across that submission.
Conviction appeal ground 2: inconsistent verdicts
Ground 2 of the appellant's conviction appeal contends that the verdicts with respect to counts 2, 3, 5 and 6 are inconsistent with the verdicts with respect to counts 1 and 4.
General principles
The principles applicable to an appeal brought on a ground that a verdict is inconsistent with other verdicts of the jury are well established. The test to be applied by an appellate court is whether the inconsistency is of such a character that the verdicts cannot stand together as an exercise in fact finding based on logic and reasonableness. In other words, can it be concluded that the different verdicts cannot have been the product of the deliberations of a reasonable jury applying their minds properly to the fact‑finding process in relation to each of the counts?[123] As was noted by Buss P, with whom other members of the court agreed, in KND v The State of Western Australia:[124]
It is necessary for the appellant to satisfy this court that the verdicts cannot stand together; that is, that no reasonable jury whose members properly applied their minds to the facts of the case could have arrived at the verdicts in question. If there is a proper way in which this court may reconcile the verdicts, and thereby conclude that the jury performed its functions as required by law, the verdicts will not be inconsistent in the relevant sense. The critical issue is whether it was logically and reasonably open to the jury to acquit on two counts and convict on the other.
[123] Bailey v The State of Western Australia [2018] WASCA 169 [40] and cases there cited.
[124] KND v The State of Western Australia [2017] WASCA 36 [36].
Although there are no hard and fast rules for determining whether different verdicts can stand together, Owen JA in DPJB v The State of Western Australia set out several points that emerge from the authorities:[125]
1.If a jury returns an acquittal in relation to a count in respect of which a prosecution witness has given evidence, it does not follow that the jury must have concluded that the witness was generally untruthful or his or her credibility was compromised: Markuleski [67]; R v KET [1998] VSCA 73 [29]. The jury might not have disbelieved the witness but thought the evidence lacked the requisite particularity as to time, place or circumstances to justify a conviction: Duniam v The Queen [1997] TASSC 107. Similarly, the jury might have regarded the witness's evidence as generally credible but thought that, in relation to some issues, the witness's recollection was faulty: R v LR [2005] QCA 368; [2006] 1 Qd R 435; R v J (No 2) [1998] 3 VR 602, 628.
2.The court should be aware of the possibility that the jury may have taken a 'merciful' view of the facts and acquitted the accused on some counts for which, on the evidence, the accused ought to have been convicted: Lefroy [18]; MacKenzie (367 ‑ 368). Although the jury's actions may be logically questionable, it is perhaps understandable and the court should not shut its eyes to the fact that it is part and parcel of the administration of justice by juries: Markuleski [227]; R v Kirkman (1987) 44 SASR 591, 593.
3.In assessing whether differing verdicts can stand together, the presence or absence of corroboration may be a relevant point of differentiation. For example, in MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606 the accused was charged with nine sexual offences against a male youth. Those offences were said to have occurred on four separate occasions. The jury acquitted the accused on seven counts relating to three of the occasions, but convicted him of two counts committed on the other occasion. The High Court dismissed his appeal on the ground of inconsistent verdicts. The differing verdicts were explicable on the basis that the two counts in respect of which the accused was convicted were the only counts which were substantially supported by the evidence of another witness.
4.The fourth point is closely related to the third. The presence or absence of evidence adduced by the accused which casts doubt on the prosecution case in respect of a particular count may explain differing verdicts. For example, in Lefroy the accused was charged with six counts of indecent dealing. The complainant was a pupil of the accused, a school teacher. Two of the counts were said to have taken place in the classroom while other students were present, two were said to have taken place at the accused's home and two were alleged to have taken place in a public shower block during a camping trip. The accused was convicted of the two counts which were said to have taken place in his home, but acquitted of the other four. The Court of Criminal Appeal found that the differing verdicts could be explained by the fact that the accused adduced evidence showing that other students had not seen anything untoward happen in the classroom and that the public showers were seldom used during camping trips to that location.
5.It may be more difficult to reconcile differing verdicts when the offences were said to have occurred at the same time or been part of one course of conduct. For example, in R v LR the accused was charged with six counts of rape. Three counts related to the alleged penetration of the complainant's mouth and three related to the penetration of her vagina. The prosecution case was that the accused had forced himself on the complainant and carried out the offences in one episode. The accused admitted two counts of oral penetration but claimed that it was consensual. He denied any vaginal penetration. The jury convicted the accused of two counts in relation to the oral penetration, but acquitted him in relation to the three counts of vaginal penetration and the remaining count of oral penetration. The court took the view that it was extremely difficult to identify any rational basis upon which the verdicts could be reconciled. If the jury did not regard the complainant's evidence as sufficiently reliable to be satisfied that four acts of non‑consensual penetration occurred, it was difficult to see how they could have been satisfied that the two admitted acts of oral penetration said to have been committed in the same course of conduct were non‑consensual.
6.In reconciling verdicts the court should have regard to the way in which evidence was given by the witnesses. There may be subtle differences in the way the evidence was presented that led to differing verdicts: Markuleski [70]; Strickland v The Queen [2000] WASCA 68 [10]. The court should also be aware that pauses and other indications of indecision might not have been recorded in the transcript but nevertheless have been observed by the jury: R v J (1994) 75 A Crim R 522, 540. In other words, the appellate court should not ignore the fact that differing verdicts may be explicable by the peculiar advantage that is available to the jury from hearing the evidence first‑hand which is not available to an appellate court.
[125] DPJB v The State of Western Australia [2010] WASCA 12 [81], adopted by this court in Bailey v The State of Western Australia [2018] WASCA 169 [42] - [43].
Owen JA then concluded that:
It seems, therefore, that the task of the court in these cases is to review the evidence and to determine whether, as a matter of logic and reasonableness, the different verdicts can stand together. All of the circumstances of the case must be taken into account in making that assessment. It also seems to me that an inability to identify with precision a single factor or a combination of factors that positively explains why the jury acquitted on one or more counts and convicted on others is not necessarily fatal to the integrity of the convictions. The question is whether it was logically and reasonably open to the jury to reach the conclusions that they did [82].
Appellant's submissions
The appellant emphasises that the State chose to run its case on the basis that all offending occurred on the same day, and as part of a single opportunity to offend. The jury was required to assess the credibility and reliability of both T and H. The appellant submits that the jury's verdicts illustrate that the jury was not satisfied of the reliability of their evidence, at least in some respects. He contends that it is not reasonable, nor a product of logic, to suggest that the reliability of the evidence of T and H as to the same course of events can give rise to both convictions, and reasonable doubt.
The appellant speculates that the reasons for the different verdicts between counts 1 and 2 were the evidence of T's recent complaint about the conduct the subject of count 2 to C and the corroborative evidence of H in relation to count 2. However, that additional evidence in relation to count 2 does not, on the appellant's submission, explain the guilty verdicts on counts 3, 5 and 6.
The appellant further submits that the not guilty verdict on count 4 calls into question the reliability of H's evidence. The appellant submits that it is illogical, in the circumstances, to suggest that H's evidence is not sufficiently reliable to sustain a conviction on count 4 but is corroborative with respect to count 2.
Respondent's submissions
The State relies on C's recent complaint evidence in relation to count 2, and H's evidence that she heard the appellant tell T to 'keep sucking it', as providing a possible basis for different verdicts on counts 1 and 2.
The State submits there were also particular details in T's evidence in relation to counts 2 and 3 which might be regarded as unusual for a child of her age (7 years and 4 months at the time of the CWIs) and disposition. The State submits that the jury may well have found T's evidence that she felt 'wee' or 'piss' coming out when his penis was in her mouth, and the appellant 'shaking' his penis 'lots of times', to be compelling evidence that this was a child who, without an apparent understanding of adult sexual concepts, was describing the appellant ejaculating while his penis was in her mouth (as alleged in count 2) and masturbating (as alleged in count 3).
The State therefore submits that the jury may have regarded T's evidence as generally credible and reliable but convicted only on counts 2 and 3 in which the allegation was supported by other evidence and/or where her evidence of the alleged conduct contained a particular level of detail. Equally, the jury might not have disbelieved T in count 1 but thought her evidence of the penile/vaginal penetration lacked the requisite particularity to justify a conviction.
In relation to count 6, the State submits that, if the jury were satisfied that the appellant committed count 2, then the evidence of that conduct would be admissible in supporting a conviction on count 6, which was conduct occurring at the same time. That is, if the jury accepted that the appellant penetrated T's mouth with his penis as alleged in count 2, then that made it more likely that he encouraged H to do the same thing at the same time.
The State accepts that the alleged conduct in counts 4 and 5 was identical, save for the room in which the offence was alleged to have occurred. The State submits that the different verdicts between these two counts may be explained by the fact that, across the CWI and her pre-recorded evidence, there was at times a degree of ambiguity in H's evidence as to whether the appellant had rubbed his penis against H's genitals in the bedroom, or the lounge room or both. In these circumstances, the jury's not guilty verdict on count 4 may have been a merciful verdict, and convicting the appellant only of count 5 was consistent with H's final evidence that the appellant had rubbed his penis against her genitals in the lounge room.
Disposition
In our view, there is no merit in the appellant's submission that the not guilty verdict on count 1 was inconsistent with the guilty verdicts on counts 2 and 3. Count 1 alleged sexual penetration of the complainant's vagina by the appellant's penis. As the trial judge directed the jury,[126] this required the jury to be satisfied that the appellant's penis penetrated the outer lips of T's vagina to some degree.[127] As well as giving this direction during the course of his Honour's summing up, the trial judge also gave the direction in response to a jury question asked after the conclusion of the evidence but before counsel's addresses.[128]
[126] Trial ts 357.
[127] See par (a) of the definition of 'to sexually penetrate' in s 319(1) of the Criminal Code.
[128] Trial ts 327 - 328.
As noted above, the account given by T at her first CWI was no more specific than to say that the appellant put his 'willy' in T's 'rudie', without any clear indication of what she meant by 'rudie'. While in her pre-recorded evidence T said that another name for 'rudie' was 'vagina', she did not give evidence at the pre-recording that the appellant put his penis in her vagina. This point was made by the appellant's trial counsel in her closing submission to the jury. After referring to T's evidence and the definition of 'sexually penetrate', counsel submitted:[129]
But the problem, members of the jury, is that she doesn't describe actually where it went. She says, 'In my rudie' but where in her rudie? And where's the - where's the rudie to her? She does say, at one point, that 'the rudie is where the pee comes out'. I think that she does say that, that she understands the rudie to be where the pee comes out.
But again, there's the front of the rudie, there's the middle of the rudie, there are different parts to the rudie and where, precisely, has this gone[.] [C]an you be satisfied that there has been the sufficient degree of penetration, at law, based on this evidence?
[129] Closing ts 32 - 33.
A reasonable explanation for the jury's verdict of not guilty on count 1 is that, while the jury accepted T's account as credible and reliable, they also accepted the submission quoted in the previous paragraph. That is, while accepting that the appellant placed his penis in T's vaginal area, the evidence may have left the jury with a reasonable doubt as to whether there was actually any degree of sexual penetration of the vagina. If the jury had a reasonable doubt as to that element of the offence, then they would properly have delivered a verdict of not guilty on count 1. Indecent dealing was not left for the jury as an alternative verdict on count 1.
We note that there may be a factual error in the second paragraph of the submission quoted at [111] above. Counsel appears to attribute the comments about the 'front' and 'middle' of the 'rudie' to T. However, it was H rather than T who referred to the different parts of her 'private'.[130] Nothing turns on that discrepancy for the purposes of this ground of appeal.
[130] CWI ts, 28/09/2018 at p 8, 25.
Reconciliation of the different verdicts in relation to counts 1 and 2 does not depend on the jury relying to any extent on the reliability of H in corroborating T's account in relation to count 2. The not guilty verdict on count 1 is explicable by the lack of specificity in T's evidence as to the element of sexual penetration. It does not give rise to an inference that the jury must have regarded as unreliable T's or H's evidence as to what they perceived the appellant to have done.
We accept the State's submission that there were particular details in T's evidence in relation to counts 2 and 3 which might be regarded as unusual for a child of her age and disposition. T's evidence as to those details was reasonably capable of being accepted by the jury as compelling evidence that T, without an apparent understanding of adult sexual concepts, was describing the appellant ejaculating while his penis was in her mouth (as alleged in count 2) and masturbating (as alleged in count 3).
We also accept the State's submission that, having found the appellant to be guilty of count 2, the evidence in support of count 2 provided strong support for H's account in relation to count 6.
Counts 4 and 5 related to the same conduct on the same occasion in the bedroom (count 4) and lounge room (count 5). H's evidence in relation to the offending in the bedroom was much more detailed than her account of the offending in the lounge room. However, the difference in the verdicts for counts 4 and 5 is explained by H's evidence under cross-examination at the pre-recording of her evidence, summarised at [53] above. At the pre-recording, which was only about a month after her CWI, H said that the only sexual contact between the appellant and her was that which occurred in the lounge room. Given that H in effect said in her pre-recorded evidence that the conduct in the bedroom did not occur, and absent any corroborating evidence as to indecent dealing with H in the bedroom, the jury may have had a reasonable doubt as to the reliability of H's CWI account of indecent dealing in the bedroom.
In our view, the verdicts of not guilty and guilty on different counts are capable of being reconciled in the manner described above. The verdicts are not inconsistent. Ground 2 is not established.
Conviction appeal ground 3: unreasonable verdicts
Ground 3 in the appellant's conviction appeal contends that the verdicts of the jury with respect to counts 2, 3, 5 and 6 were unreasonable and not supported by the evidence at trial.
General principles
This court recently summarised the general principles governing the determinations of appeals alleging that a jury's verdict is unreasonable or cannot be supported having regard to the evidence in MEN v The State of Western Australia.[131]
[131] MEN v The State of Western Australia [2020] WASCA 118 [403] - [410], [705].
As was noted in that summary, the High Court recently described the functional demarcation between the province of the jury and the province of the appellate court in Pell v The Queen.[132] The court emphasised that the assessment of the credibility of a witness by the jury on the basis of what it has seen and heard in the context of the trial is within the province of the jury as representative of the community.[133] By contrast:[134]
The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citation omitted)
Viewing the CWIs and pre-recorded evidence
[132] Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394.
[133] Pell [37] - [38].
[134] Pell [39].
In both Pell and MEN it was recognised that an appellate court should view a video-recording of a witness' evidence at trial only where there is a real forensic purpose in doing so, which is likely to arise only in exceptional cases.[135] An example of a legitimate forensic purpose for viewing video recorded evidence was given in MEN:[136]
The position is different where a party suggests that viewing the videos will assist the court in understanding some aspect of precisely what the effect of a witness' evidence was. For example, in Scott v The Queen [[2020] NSWCCA 81], the appellate court viewed the video of the complainant's evidence because, the complainant having used gestures on a number of occasions in her interview, what it was that she was indicating could only be discerned visually [at [53]].
[135] Pell [36], MEN [415] - [418], [708] - [709].
[136] MEN [417].
The appellant's counsel did not ask the court to view the video recordings of the CWIs or the pre-recorded evidence of T and H, and accepted that the court was entitled to proceed on the basis of the transcript.[137]
[137] Appeal ts 14.
Counsel for the State suggested that this court might view the video recordings on the basis that it may assist the court's assessment of whether answers were given 'based on a real recollection or not'.[138] In our view, that would be to enter into the province of the jury by assessing the credibility of T's and H's evidence by reference to the manner in which the evidence was given. The purpose of viewing the video recordings suggested by counsel for the State is not to enable this court to understand precisely what the effect of T's and H's evidence was.
[138] Appeal ts 15 - 16.
In these circumstances, there does not appear to be a proper forensic purpose in this court viewing the video recordings, and we have not done so.
Appellant's submissions
The appellant submits that the State's case was that all of the offending occurred on the same day, and that a crucial question for the jury was whether they found the complainants to be credible and reliable.
The appellant submits that T's evidence was inconsistent at best. The interviews showed her preoccupation with other matters rather than what was being asked of her, and her continuing concern about being imprisoned.
The appellant also submits that H had similar memory issues and factors affecting the quality of evidence adduced in her interviews. Both T and H seemed to accept that there were often many children about the house. This called into question the opportunity for the appellant to offend in the manner alleged. The appellant therefore submits that the jury must have entertained a reasonable doubt as to whether the appellant committed counts 2, 3, 5 and 6 and failed to give effect to that doubt. Accordingly, the appellant submits that it is dangerous for this court to permit the verdicts to stand.
Respondent's submissions
The State accepts that it is apparent on the face of the transcript of the CWIs that T frequently went off-topic, became distracted and generally struggled to sit still. However, while T did at one point in her first CWI refer to not wanting to go to 'kid gaol', to say that it was a 'continuing concern' is an overstatement. The State submits that the inference put forward by defence counsel (that T was worried because she had told a lie to Ms MacDonald) was evidently rejected by the jury in their verdicts.
The State submits that whether the manner in which T presented in her CWIs materially affected the jury's assessment of her honesty and reliability was a matter for them, having due regard to T's age (at the time of the interview) and background, applying their collective experience of the manner and attention span of children of that age. The State submits that it was open to the jury to consider that T's presentation exhibited a guilelessness that lent to, rather than detracted from, her credibility.
The State submits that the fact there were a varying number of children living at P's house during the period did not necessarily mean that they were all at home when the offending occurred (particularly with regard to the older children). The jury might also have thought that many of the children, if they were at home, were of such a young age that their presence at the house generally had little effect on the opportunity for the appellant to offend against T and H.
The State says that, whilst the matters raised in ground 3 were relevant to the credibility of T's and H's respective evidence, none of those matters considered in isolation or in combination precluded the jury from unanimously accepting their evidence in relation to counts 2, 3, 5 and 6.
Disposition
In our view, it was open to the jury to be satisfied, beyond reasonable doubt, that the appellant was guilty of each of the offences of which he was convicted.
Rejection of appellant's denials
Before they could convict the appellant of any of the offences, it was necessary for the jury to positively reject the appellant's denial of those offences in his EROIs. If they believed those denials, or thought there was a reasonable possibility that they might be true, then the jury would have been required to deliver verdicts of not guilty.
The jury could properly have rejected the appellant's denials on the following basis. In the first EROI, the appellant emphatically denied both that he was with T and H at P's house without adult supervision for any substantial period of time (so as to contend that he never had the opportunity to offend in the manner alleged). At the same time, he denied ever having sexually offended against any child. In the second EROI, the appellant admitted to lying about his opportunity to commit the offences, but continued to deny that he offended against T or H. Given his admitted and demonstrated capacity to lie about the opportunity, the jury could reasonably have regarded the appellant's answers to police questions as unreliable, and declined to give any weight to the appellant's denials of the alleged offending.
Counts 2 and 3: offending against T
T's account of the offending alleged in counts 2 and 3 was difficult to elicit and often disjointed. However, the effect of the manner in which she gave that account on the credibility and reliability of that account was a matter for the jury to assess. Having viewed the recorded interviews and evidence, the jury believed the essential aspects of her account. It does not appear from the transcript of the CWIs that the manner in which T gave the account was necessarily such as to raise a reasonable doubt as to the truthfulness or reliability of the account.
In assessing T's evidence, it is appropriate to take account of her young age, deprived upbringing and ADHD, which explain the difficulty that the interviewers had in obtaining information from T. Significantly, the manner in which T described the appellant's conduct reflected the manner in which a young child might be expected to describe adult sexual conduct. T described sucking the appellant's penis and feeling 'piss coming out', which appears to be a childish description of the appellant ejaculating in T's mouth after requiring her to perform fellatio on him. Her description of the appellant masturbating in her presence - that he 'shaked it a lot of times' - is one which might be expected of a child her age. The conduct which T described is not that to which a child her age would ordinarily be exposed. Nor is it conduct which a child her age would ordinarily be capable of describing if she had not actually experienced it.
In our view, it was open to the jury to be satisfied, beyond reasonable doubt, that T was honest and reliable as to the conduct of the appellant that she described as having occurred. Further, the prosecution case on count 2 was supported by the recent complaint evidence of T's mother and supported to some extent by H's evidence of hearing the appellant tell T to 'keep sucking it'. If the jury were satisfied, beyond reasonable doubt, that the conduct the subject of count 2 occurred, then evidence of that conduct could be used as propensity evidence in support of the prosecution case on count 3. That is, the jury could properly consider that the fact the appellant required T to perform fellatio upon him as alleged in count 2, if established, made it significantly more likely that T's account of the appellant masturbating in her presence was true.
Counts 5 and 6: offending against H
H's evidence of the appellant putting his 'willy' on her 'private' was also a description of the charged offending conduct which might be expected of a child of H's age, and which the jury might reasonably have thought was unlikely to be invented by a child that age. H's account of the conduct the subject of count 5 was maintained under cross‑examination.
Support for the prosecution case on counts 5 and 6 could also be obtained from the evidence supporting counts 2 and 3, if the jury were first satisfied beyond reasonable doubt that the conduct charged in counts 2 and 3 occurred. The jury could reasonably consider that the fact the appellant had engaged in sexual conduct with H's sister at the same time made it significantly more likely that H's account of offending against her was true. In particular, the fact that the appellant required T to perform fellatio upon him could reasonably be seen as making it significantly more likely that, at about the same time, the appellant asked H to perform the same act.
The State also seeks to distinguish Hill on the basis that in the present case all charged and uncharged acts happened very close in time after the two girls had been left with the appellant at the same time while their mother went shopping. The State says that, by contrast, the charged and uncharged acts in Hill happened on numerous occasions over an approximate 18 month period.
However, the State also advances a position which appears inconsistent with the above submissions. The State submits that the evidence of uncharged acts was admissible circumstantial evidence at common law which could be taken into account in deciding whether the State had proved the charged acts to have occurred.[165] The State refers to passages from the High Court's decision in R v Bauer,[166] in support of the proposition that a complainant's evidence of uncharged sexual acts is ordinarily, at common law, to be attributed high probative value in the proof of other charged sexual acts.[167] However, Bauer was concerned with whether evidence of prior sexual conduct had significant probative value for the purposes of a comparable provision to s 31A of the Evidence Act.
[165] Respondent's supplementary submissions, par 20.
[166] R v Bauer [2018] HCA 40; (2018) 266 CLR 56 [49] - [52], [55], [57], [58].
[167] Respondent's supplementary submissions, par 21.
The State also notes that neither trial counsel raised any issue with the judge's direction concerning the use of evidence of uncharged acts.[168]
[168] Respondent's supplementary submissions, par 24.
The State also says that the appellant has not demonstrated that it is reasonably possible that the form of the trial judge's direction affected the verdict and resulted in a miscarriage of justice in the trial. The State therefore submits that ground 4 should be dismissed. If, contrary to the State's submission, ground 4 is upheld, the State does not submit that the 'proviso' in s 30(4) of the Criminal Appeals Act 2004 (WA) should be applied.[169]
Disposition
Uses of evidence of uncharged acts and directions about such evidence
[169] Respondent's supplementary submissions, par 25 - 26.
Evidence of an accused's criminal or discreditable conduct which is not the subject of a charge in a trial for sexual offences may, depending on the circumstances, be admitted for a variety of different purposes. The following examples of the purposes for which such evidence may be led were given by Buss P and Sofronoff AJA in LNV v The State of Western Australia:[170]
(a) to place the offending into its true context and thereby to remove the potential implausibility of an allegation of an isolated incident;
(b) to prove that the accused had a sexual attraction for the complainant, or people like the complainant, so as to show a motive to commit the offence;
(c) to demonstrate that the accused was a person who was prepared to act on his urges to commit the charged offence because he had actually committed similar offences against the complainant or others previously; and
(d) to explain any delay or failure to complain.
[170] LNV v The State of Western Australia [2019] WASCA 180 [66].
The decision in Bauerillustrates that, in some circumstances, evidence of uncharged sexual offending against a complainant may be used as propensity or tendency evidence and be admissible as proof of the sexual offences with which the accused is charged, if the evidence has significant probative value. The evidence may have significant probative value on the basis that, taken in combination with other evidence, it may establish the existence of a sexual attraction of the accused to the complainant, and a willingness to act on it, which assists to eliminate doubts that might otherwise attend the complainant's evidence of the charged acts.[171] In Western Australia such use of evidence of uncharged acts as propensity evidence depends on it being admitted under s 31A of the Evidence Act.
[171] Bauer [48] - [49].
In other circumstances, evidence of uncharged sexual offending against a complainant may also go to the proof of a charged sexual offence, despite not being admitted under s 31A of the Evidence Act. That point is illustrated by the recent decision of this court in Dann v The State of Western Australia.[172] In that case, evidence of the accused touching the complainant's bottom earlier in the evening, and the complainant rebutting his advances, was not admitted as evidence of the propensity of the accused to engage in much more serious sexual offending (sexual penetration without consent and attempted sexual penetration without consent) later that night. The relevance of the evidence of the uncharged act was that it was capable of demonstrating that the appellant had shown a sexual interest in the complainant on the night of the alleged offences and that his sexual advances had been rebuffed. The existence of such a sexual interest made it more likely that the accused sexually penetrated the complainant, without her consent, by indicating a motivation to engage in sexual activity with the complainant. That the earlier sexual advances were rebuffed made it less likely that the complainant consented to the later sexual activity or that the accused could reasonably but mistakenly have believed that she was consenting.[173] The trial judge in Dann was held not to have erred in directing the jury that, if sexual interest was proven, it was relevant to the issue of whether the offences occurred.[174]
[172] Dann v The State of Western Australia [2021] WASCA 15.
[173] Dann [45] - [46].
[174] Dann [51].
In other cases, evidence of uncharged sexual offending may be relevant on a more limited basis. Although the evidence may not go towards establishing the accused's guilt of the charged offence, it may be relevant to the evaluation of other evidence on which the prosecution relies. This use is often referred to as providing 'context', although this phrase can cover a variety of different uses of evidence, including:
(1)The evidence may enable a complainant to give a full account so that their evidence of the accused's conduct on the day of the offence in a familial setting would not appear 'out of the blue' and inexplicable on that account.[175]
(2)The evidence may show grooming of the complainant from a young age, or otherwise explain the complainant's compliance with the offending and his or her failure to complain.[176]
(3)The evidence may explain why an accused might feel able to act with impunity, having gotten away with similar offending before.[177]
(4)The evidence may explain why the complainant is unable to give details of a specific incident which formed part of regular repeated sexual offending by the accused.[178]
(5)The evidence may form an integral part of an account of a connected series of events, and may be necessary to render the complainant's account complete and intelligible.[179]
[175] Roach v The Queen [2011] HCA 12; (2011) 242 CLR 610[42], cited in Johnson [19].
[176] HML v The Queen [2008] HCA 16; (2008) 235 CLR 334[426].
[177] See HML [408].
[178] See Hill [72].
[179] See HML [24] - [25], [425] - [433].
The above illustrations of the manner in which evidence of uncharged sexual offending against a complainant may be used all relate to a charge alleging sexual offending against the same complainant. Different considerations will generally arise where it is alleged that the evidence of uncharged acts against one complainant may be used in considering a charge of sexual offending against a different complainant. Such evidence may be admissible under s 31A on the basis that it has significant probative value. However, in the case of offending against multiple complainants there must ordinarily be some feature about the offending which links the offences together.[180]
[180] NDY v The State of Western Australia [2020] WASCA 172 [52] - [57] and cases there cited.
Where evidence is admitted for the limited purpose of providing 'context', rather than going towards proof of the prosecution case, and there is a risk that the jury may otherwise apply propensity reasoning to the evidence, then a direction will ordinarily be required to avoid a miscarriage of justice. As Beech JA noted in LNV:[181]
Generally speaking, where evidence is admissible for one purpose but inadmissible for another, the trial judge should direct the jury that they must not use the evidence for the purpose for which it is inadmissible, at least where the use of the evidence for the impermissible or irrelevant purpose would be adverse to the accused. Where evidence is relevant and admissible for other reasons, but incidentally discloses the accused's propensity, a warning to the jury not to engage in propensity reasoning is ordinarily required. That will be all the more so if, as occurred here, evidence that was admissible for other purposes is used by the prosecution to invite propensity reasoning in circumstances where the evidence could not properly be used for such a purpose. (citations omitted)
The decision of this court in Hill is an application of that principle.
Parties' positions as to permissible use of evidence of uncharged acts
[181] LNV [103]; to similar effect see also Buss P and Sofronoff AJA at [78].
The proper starting point in considering whether a miscarriage of justice was occasioned by a failure to direct the jury as to the permissible uses of evidence of uncharged acts is to identify what was the permissible use.[182] That is, why was the evidence relevant and in what way, precisely, could the jury use the evidence in their reasoning process?
[182] PIM v The State of Western Australia [2009] WASCA 131; (2009) 40 WAR 489 [122].
In this case there is no dispute that the evidence of uncharged acts was admissible. However, the State has not, either at trial or on appeal, clearly articulated the precise use of the evidence which was permissible, and its position on appeal appears somewhat contradictory. The appellant also does not identify what he accepts to be the relevance of the evidence beyond referring to 'context', which (as noted above) is a label which may be employed to evidence used for a variety of different purposes.
It is common ground that the evidence of uncharged acts was not admitted or sought to be used under s 31A of the Evidence Act. The relevance of the evidence must therefore be assessed by reference to the common law.
To the extent that the evidence concerned uncharged acts occurring on the same occasion as charged acts, evidence of uncharged acts would be admissible as part of the res gestae. It would provide context in the sense of describing the acts of the appellant which occurred at the same time as the charged acts.
This does not appear to be a case where the evidence of uncharged acts was relevant to explain why H and T did not recall more details of the offending. It does not appear to have been asserted by the State (in contrast to the position in Hill) that the offending was so regular that 'all the incidents blend into one another for the complainants'. Nor, at least in the case of T, was the evidence admissible on the basis that the normalisation of the sexual abuse for the complainants explains the absence of a complaint. Here the evidence was not of uncharged acts occurring so frequently so as to normalise the conduct, and there was a recent complaint by T to her mother.
As noted in Dann, evidence of the prior demonstration of sexual interest in a complainant at a time proximate to the alleged offending may be admissible circumstantial evidence at common law. This is on the basis that the existence of that sexual interest makes it more likely that the accused person engaged in sexual conduct with the complainant on the charged occasion. That is, evidence of uncharged acts may be evidence of motive to engage in the charged conduct, which may form part of the State's circumstantial case. However, the use of the evidence of uncharged acts in this manner has not been identified by either party.
Despite the lack of clarity as to the parties' positions concerning the permissible use of evidence of the uncharged acts, there is common ground in this appeal as to an impermissible use of the evidence. It is common ground that the evidence was not admitted or sought to be used as propensity evidence under s 31A of the Evidence Act.
It may be that the evidence of the uncharged acts in the present case was admissible as propensity evidence under s 31A of the Evidence Act. However, it is unnecessary to consider that issue because it is common ground that the evidence of uncharged acts was not admitted under s 31A even if it could have been admitted on that basis. Further, the appellant's trial counsel would reasonably have understood from the discussion noted at [148] - [150] above that the State was not relying on the evidence of uncharged acts as propensity evidence, and that the jury would be so directed by the trial judge. No doubt, the appellant's trial counsel acted in reliance on that understanding in formulating her closing address to the jury. It would be unfair for this court to now adopt a different approach on appeal.
There is also no suggestion that the evidence of uncharged acts was admissible as propensity evidence at common law.[183]
[183] As to which see Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461.
Having regard to the parties' positions and the course of the trial, it is appropriate for this court to proceed on the basis that:
(1)the evidence of the appellant's uncharged acts was not admitted as propensity evidence and could not properly have been used by the jury for that purpose; and
(2)a direction to the jury that they must not adopt propensity reasoning in relation to the evidence of uncharged acts would have been required if there was a real and not remote possibility that the jury might adopt that reasoning without a direction.
Prospect that the jury might adopt propensity reasoning
In our view, in the circumstances of this case, there was a real and not remote possibility that the jury might adopt propensity reasoning in relation to the evidence of uncharged acts.
The manner in which the prosecutor addressed the jury in relation to the use which they could make of the evidence of uncharged acts contributed to the risk that the jury might adopt propensity reasoning. The prosecutor referred to an 'unnatural relationship' and the appellant's 'unhealthy sexual interest'. At the same time, he told the jury that they could use a finding of guilt on one charge when looking at the other charges. This passage could be taken as an invitation to regard the appellant as 'the kind of person who was likely to have committed the charged offences', to adopt the language of the State's submissions in the appeal.
It is also noteworthy that the prosecutor did not confine the use of evidence by a complainant of uncharged acts to a consideration of the charges against that particular complainant. The prosecution submitted to the jury that evidence of T or H as to uncharged acts could be used 'when you're looking at deciding whether the State has proved any of the six counts on the indictment'.[184] So, on the prosecutor's submission, the jury could use evidence of T as to uncharged acts committed against her in deciding whether the charged sexual abuse against H was proven. Putting the submission in that way increased the prospect of it being taken as an invitation to engage in propensity reasoning.
[184] Closing ts 8.
The impact of the prosecutor's submission as to the way in which the jury could use the evidence of uncharged acts was added to by his statement that:[185]
And I know that if I misstate anything now, his Honour will jump in and correct me. That's his Honour's job.
The trial judge did not correct the prosecutor either at the time of the submissions or in his charge to the jury. In those circumstances, the jury could regard themselves as able to rely on what the prosecutor said about 'the way you can use that evidence'.
[185] Closing ts 9.
The trial judge's direction to the jury about evidence of uncharged acts did not preclude the adoption of propensity reasoning. The judge did tell the jury that the evidence was led to 'put the events, the subject of the charges in the indictment, in their proper context'. He said that the evidence was 'the background' and the 'context'. However, the trial judge did not explain what he meant by 'context', and was describing why the State led the evidence rather than directing the jury as to the limits of the permissible use of the evidence. Further, any implied statement that the jury could only use the evidence as 'background' or 'context' was undermined by the direction that:[186]
If you do find that evidence to be truthful and accurate, you can consider that evidence along with all the other evidence to decide whether the State has proved the charges beyond reasonable doubt.
This direction indicates that the evidence of uncharged acts is more than merely 'background' or 'context', as did the direction applying the Longman warning to evidence of uncharged acts. These directions indicated that the evidence of uncharged acts had work to do in support of the prosecution case beyond merely indicating the background or context in which the offending occurred.
[186] Trial ts 364.
The risk that the jury might consider propensity reasoning to be open in relation to the evidence of uncharged acts was amplified by the directions given in relation to the cross-admissibility of evidence on different counts. The direction quoted at [155] above invited propensity reasoning in relation to evidence of charged conduct which the jury found to be proven, particularly the comment that:
It would be open to you to conclude that the occurrence of an incident, the subject of one or more of the counts, increases the likelihood that [the appellant] had committed the specific act, the subject of another count.
Absent a clear direction to the contrary, the jury might well fail to appreciate that the evidence of uncharged acts, if accepted, was to be treated differently from evidence on counts the jury found to be proven.
The passage of the trial judge's direction quoted at [156] above does not, in our view, provide clear direction to the contrary. There the judge referred to his earlier specific directions without indicating that he was giving an additional or specific direction. While he indicated the earlier specific directions could only be used 'in the context of the background to the events', the use of the word 'largely' diluted that message. Further this passage appears as an incidental comment made in the course of summarising the State's case.
In our view, when the trial judge's direction is considered as a whole and in light of the way the prosecution case had been presented, it left it open to the jury to reason that the appellant was more likely to have committed the charged offences because of his other uncharged offending. That included using the evidence of uncharged acts committed against one of the complainants to support the charges against the other complainant. In light of the way the prosecution and defence cases were presented, and the way in which the jury was directed, there was, in our view, a real and not remote possibility that the jury might have adopted propensity reasoning in relation to the uncharged acts. It is common ground between the parties in the appeal that the evidence of uncharged acts was not adduced or available to be used for that purpose. In these circumstances, as in Hill, a specific direction was required as to the uses to which such evidence must not be put.
We do not accept the State's submission that the not guilty verdicts on some counts shows that a specific direction was not required. The question is not whether the jury was 'overwhelmed by an impermissible inference', as the State's submission suggests. Rather, the concern is with the real and not remote possibility that the jury might have used evidence of uncharged acts for an impermissible purpose in being satisfied that the State had proved beyond reasonable doubt the counts of which the appellant was found guilty.
Nor do we accept the State's submission that Hill is to be distinguished on the basis of the temporal proximity of the charged and uncharged acts in this case. The statements of principle in Hill do not depend on the temporal proximity of the charged and uncharged acts. Further, the complainants' evidence in the present case often left it unclear as to when the uncharged acts occurred, and the degree of temporal proximity to the charged acts. The trial judge's summary only indicated that the uncharged acts referred to at [152](2) and (3)(d) above occurred on the same day as the charged acts.
We recognise that trial counsel did not raise any issue with the directions that were given, and agreed with the form of direction noted at [149] above. The fact that defence counsel in a criminal trial does not seek a redirection may support a conclusion that in the context of the charge as a whole a challenged statement does not bear the interpretation sought to be placed upon it on appeal.[187] However, the trial judge's actual direction was not confined to that anticipated in discussions with counsel. In the present case, we are satisfied that the direction gave rise to a miscarriage of justice despite no objection being taken by counsel at trial.
[187] GBF v The Queen [2020] HCA 40; (2020) 94 ALJR 1037 [25].
As noted above, the State submits that, in addition to showing a reasonable possibility that the jury reasoned improperly from the uncharged act evidence, it is also necessary to show that failure to give a particular direction may have affected the verdict before a miscarriage of justice will be established. However, in the present case the direction was required because there was a reasonable possibility that the jury might have used evidence for an impermissible purpose in arriving at their guilty verdicts. The prospect that the jury might have acted in that manner, in a case where conviction was not inevitable, when concluding that certain charged acts were proven beyond reasonable doubt means that the absence of a direction may have affected the verdict.
In the present case evidence as to uncharged acts by the appellant was led as part of the prosecution case. The jury was given no clear direction as to the permissible uses of that evidence, and even on appeal the parties' submissions as to what was the permissible use were unclear. However, on appeal both parties agreed that propensity reasoning was an impermissible use of the evidence. In the context of the present case, the absence of a direction indicating that propensity reasoning was impermissible gave rise to a miscarriage of justice. As we accept the State's submission that the 'proviso' in s 30(4) of the Criminal Appeals Act should not be applied, the appeal must be allowed. Given that the evidence led at trial was capable of supporting the convictions, a retrial should be ordered.
Appeal against sentence
The success of the appellant's appeal against conviction makes it unnecessary and inappropriate to say anything about the merits of the appeal against sentence. We would dismiss the appeal against sentence on the basis that it has been rendered redundant by the order allowing the appeal against conviction.
Extension of time
The appellant requires an extension of time in which to appeal in both appeals.
The delay in commencing the appeal against conviction is over 8 months. It appears that the appellant sought advice in relation to an appeal against conviction only after the appeal against sentence was commenced in August 2019. However, we would grant the extension of time on the basis that it is required to avoid a miscarriage of justice.
Orders
For the above reasons, we would make the following orders in these appeals:
CACR 36 of 2020 (appeal against conviction):
(1)The application for an extension of time to commence the appeal is granted.
(2)Leave to appeal is refused on grounds 1, 2 and 3.
(3)The appeal is allowed.
(4)The appellant's convictions on counts 2, 3, 5 and 6 on District Court indictment IND XX of 2018 are set aside and a new trial is ordered on those counts.
CACR 115 of 2019 (appeal against sentence)
(1)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
9 MARCH 2021
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